Nicketta v. Nat'l Tea Co.

• Decision Date: 29 June 1949
• Docket Number: Gen. No. 44689.
• Citation: 87 N.E.2d 30,338 Ill.App. 159
• Parties: NICKETTA et al. v. NATIONAL TEA CO.
• Court: United States Appellate Court of Illinois

338 Ill.App. 159

87 N.E.2d 30

NICKETTA et al.

v.NATIONAL TEA CO.

Gen. No. 44689.

Appellate Court of Illinois, First District, Third Division.

June 29, 1949.

Appeal from Circuit Court, Cook County; Harry M. Fisher, Judge.

Action by Rose Nicketta, a minor by her father and next friend, Charles Nicketta and others, against the National Tea Company, a corporation, for alleged breach of an implied warranty that pork purchased from defendant after proper cooking would be fit for human consumption. From an order denying their motion to vacate an adverse judgment and from the judgment, plaintiffs appeal.

Judgment affirmed.

Lewis L. Root, Chicago, for appellants.

David & Fainman, Sigmund David, Chicago, for appellee.

BURKE, Presiding Justice.

In an amended complaint filed in the Circuit Court of Cook County by Rose Nicketta, a minor, Charles Nicketta, Frances Nicketta and Marie Nicketta against National Tea Company, they alleged that Frances Nicketta purchased from defendant, a retail meat dealer, fresh pork for domestic use and consumption by her and her family; that there existed an implied warranty that the pork, after proper cooking, would be fit, wholesome and proper for human consumption; that the pork was properly cooked and then consumed by plaintiffs; and that after consuming the pork they became infested with a disease known as trichinosis. Plaintiffs demanded a jury trial. Defendant filed a motion under Sec. 45 of the Civil Practice Act, Ill.Rev.Stat.1947, c. 110, § 169, to dismiss and asserted that the court would take judicial notice that a human being cannot contract or get the illness or disease known as trichinosis from eating pork which has been properly cooked. The court heard the arguments of counsel and, being fully advised in the premises, found that ‘it is a well established and irrefutable scientific fact, of which this court will take judicial notice, that a human being cannot contract or get the illness or disease known as trichinosis from eating pork which has been properly cooked.’ Thereupon, the court sustained the motion to dismiss and entered judgment against plaintiffs. Plaintiffs filed a written motion to vacate the judgment. This motion, among other things, states that it is held by ‘competent medical authority that it is possible to contract trichinosis from pork after it has been cooked.’ The court denied plaintiffs' motion to vacate the judgment. Plaintiffs appeal from the judgment and order denying their motion to vacate.

As their theory of the case, plaintiffs say that they ‘cannot subscribe to the uncertain and nonestablished hypothesis that the parasite trichinae spirilla which produces trichinosis are under all circumstances and under all conditions permanently destroyed when pork is well cooked, particularly when the organism is encysted in its calcified capsule during its sporatic state’; that assuming, but in no sense admitting the scientific truth of defendant's theory, that the proposition is not one of ‘common every day knowledge which one of average intelligence and a knowledge of things about him can be presumed to know’ and that the proposition is neither certain nor indisputable; that judicial knowledge is a part of the law of evidence and that all matters except those of which the court is required to take judicial notice by statute can be rebutted by competent evidence; that the doctrine cannot be invoked on pleadings alone; and that the action of the court in taking judicial notice of a disputed question of fact deprived them of a jury trial. In 31 C.J.S., Evidence, § 13, page 519, it is said: ‘Proof is not required of facts of which the court takes judicial notice. The doctrine of judicial notice is based on convenience and expediency, and to say that a court will take judicial notice of a fact is merely another way of saying that the usual forms of evidence will be dispensed with if knowledge of the fact can be otherwise acquired. Judicial knowledge is not reached by the use of evidence; it is a matter pertaining to the judicial function and its existence, like that of an admission, stipulation, or rule of presumption, dispenses with evidence as to the point covered. Facts judicially noticed are hereby presented to the court as effectually as though they had been established by proper proof, and are of equal force, and it has even been held that as a means of establishing facts judicial notice is superior to evidence.’

If the matter falls within the domain of judicial knowledge, it is beyond the realm of dispute; therefore, evidence is unnecessary. It is the judge's function to decide whether a matter is a subject of evidence or of judicial notice. The judge should be free to make for himself such investigation as he desires, but he should also be able to call upon the parties for assistance. In a few cases it is said that the judge should have received evidence offered to show the opposite of what he declared to be a judicially noticed fact. What is meant is that the subject did not fall within the realm of judicial notice. American Law Institute, Model Code of Evidence, Ch. 9, comment on Paragraphs (2) and (3) of Rule 804. A trial court will take judicial notice of many things, such as the statutes of the United States and the States, well established and well known historical and scientific facts and matters of common knowledge which it would be senseless to make a litigant prove or to permit him to prove. The courts will take judicial notice of scientific facts which have been well established by authoritative scientists and are generally accepted as irrefutable by living scientists. Plaintiffs suggest that because science is progressive and new discoveries are constantly being made, no scientific fact however well established should be taken judicial notice of. It is an authoritatively established fact that water is composed of two parts of hydrogen and one part oxygen. Some day a scientist may prove that there is another element in water not known at present. If the claim that a well established scientific fact such as the constituent parts of water is not true, or that one hundred years from now it may be refuted, would be sufficient reason for preventing a court from taking judicial notice of that scientific fact, then a court could never take judicial notice of a scientific fact. There are innumerable cases in which courts have taken judicial notice of scientific facts. See Fligelman v. City of Chicago, 348 Ill. 294, 300, 180 N.E. 797;National Ice & Fuel Co. v. Industrial Commission, 387 Ill. 31, 55 N.E.2d 91;People ex rel. Schutz v. Thompson, 325 Ill.App. 95, 102, 59 N.E.2d 494;Pearcey v. St. Paul Fire & Marine Ins. Co., 163 Va. 928, 177 S.E. 843;Matter of Madura v. City of New York, 238 N.Y. 214, 144 N.E. 505;Tonkovich v. Department of Labor, Wash., 195 P.2d 638; and Van Pelt v. United States, 6 Cir., 134 F.2d 735.

That the court will apply the doctrine of judicial notice to pleadings, has long been settled. The principle is identical, whether by taking judicial notice the court supplies an essential fact omitted from a pleading, or disregards a fact alleged in the pleading because it is contrary to a fact of which the court takes judicial notice. See Lindelsee v. Chicago, O. & P. Ry. Co., 226 Ill.App. 20, 23;Horn et al. v. Illinois, C. R. Co. et al., 327 Ill.App. 498, 503, 64 N.E.2d 574; and Pierce Oil Corporation v. City of Hope, 248 U.S. 498, 39 S.Ct. 172, 63 L.Ed. 381. In 49 C.J., it is said, page 36: ‘Facts of which the court will take judicial notice need not be alleged, and the courts must read a pleading as if it contained a statement of such facts, even when there is an express allegation to the contrary.’

On page 440 of the same volume, the author says: ‘A demurrer does not admit facts which the court will take judicial notice are not true, * * *.’

We agree with plaintiffs that the court should not take judicial notice of unproved scientific theories. The trial judge, however, was not dealing with something that was unproved or a scientific theory. He was dealing with an authoritatively proved scientific fact, established and accepted for many years. He was dealing with an ordinary biological, bacteriological or zoological fact established by countless tests and accepted beyond dispute...